I just made this comment over at The Marmot's Hole, which I thought would be good as a post. It was in response to this recent story that came over the news, as well as the verdict that just came down (obvious HT to the Marmot):
I think this is a bad decision based on a law that is vague. And I'm no legal scholar, but I do know that the "right" to not be photographed against one's will in Korea -- LEGALLY defined -- is based on the right of privacy, and as such, is squarely within the realm of CIVIL law to sue people for defamation, use of their image for commercial use without permission, causing harm to one's livelihood, etc.
Now, when it comes to sexual harassment, I think that can happen with or without a camera. I think the camera being used is incidental. Now, if you invade someone's private space, or take a picture of something that couldn't be seen at a reasonable angle (e.g. sticking a camera under a skirt, hidden cameras in bathrooms, using a telephoto lens to get in someone's love motel window), I can understand.
But the standard "body parts which may cause sexual desire or a sense of shame: is pretty vague and subjective, and sets a REALLY dangerous precedent. Yeah, in this case, it's easy, and some old ajussi was photographing a high school girl's skirt. Eww. Nasty. Fine him, right? Put him in jail, right?
But who's sense of shame? What body parts? The vagina? breasts? Lower legs? Upper? The shoulders (which people can be embarrassed about)? From what distance? High high?
Now, if someone pulls out a camera and start snapping away and the person says "Stop!" and you don't -- that's harassment, regardless. But if I take a picture of a girl walking down the street, at a perfectly normal angle (which I do about every day), is it sexual harassment just because they "feel shame?"
What's dangerous about the law is that there aren't even any attempts to be specific, or draw a line. Which body parts? From what distance? It may sound ridiculous, but according to the law, If a girl raises her arm and I take a picture of a scene and she happens to be in it, and she says she feels a sense of shame because she is embarrassed that I took a picture of her hairy armpit -- when perhaps I wasn't even taking the picture because of that, which happens all the time because people are so sensitive to cameras here, that they occasionally think I am taking their picture when I am in fact NOT -- the legal standard is whether she feels a sense of "shame."
Point is, there needs to be more distinction between types of photography that are normal versus the kinds that are harassing -- I mean, if you're going to go the road of CRIMINALIZING it. Being "subject to up to five years in prison and up to a 10 million won fine" for very vaguely defined laws that clearly overlap with many kinds of LEGITIMATE photography is a very dangerous thing to do.
What this is all a response to are the so-called "molka-jok" who used to stand on Apkujeong street corners and take pics in full view, in groups of several or more, and take pictures of women even when asked directly to stop. They were creating a public nuisance and directly harassing women, and rudely replying when asked what they were shooting for, refusing to answer the women who had been shot.
Of course, the police didn't arrest them, even though they should have. Technically, they were not violating any laws with regard to photography, and when they published them, they were smart enough not to publish the faces, which could have gotten them sued (although not tried in criminal court). Still, the way they DID it was harrassing -- yet it hit the news over the last couple summers, and people were incensed. What do we do about the problem?
Create a really vague law that actually goes too far. No wonder documentary and street photography are dead here, and the only people who do it are foreigners now, as with the Magnum project that happened here -- I went to the exhibit and all I could hear the crowd saying about the photographs of some of the world's most reknowned photographers was, "Isn't this molka?" ("secret camera") or "Isn't this illegal?"
Now, it'll get even worse. No wonder there seem to be more DSLR's and $1000+ lenses here per capita than any other country I've seen, but people are absolutely petrified to take each others' pictures. Which is why blogs and photo club sites are filled with pics of cafe latte swirl patterns, cream sauce pasta, flowers, and pictures of the girlfriend sitting in a cafe. Or why only person one can safely take a picture of -- with all that expensive photo equipment -- is oneself.
Which is perhaps why the logic of "selca" (self + camera) makes so much sense here.
This pictures are NOT me accidentally photographing any part by accident, as the guy who was being prosecuted said in his defense. All parts that are in frame I meant to be there. She's licking an ice cream cone, which is an obvious "Lolita" reference. I took the pictures with the purpose of showing how much even school uniforms in Korea -- which were thankfully nothing like the ridiculous anime-fantasy style that Japanese ones are -- are now starting to be altered, hiked up, and sexified these days, too. For better or worse, I run a street fashion magazine, it's something I noticed, and I took these pictures.
If these girls do not like them, or they "feel a sense of shame," then according to the recent Supreme Court decision -- I AM A CRIMINAL. So I should go to jail for 5 years, then?
What's more -- I'm not even sorry I did it! I know the Korean prosecution and judges like to see statements of remorse, but I'll say here and now that I don't think what I did was a crime, nor do I think it was even unethical. I didn't harass these young ladies, I followed Korean legal conventions for publishing pictures of people's faces (초상권), which distinguished between TAKING a picture and PUBLISHING it, which IS a pretty big difference.
So, I committed the same act as the guy in question. Come get me, then coppers! Sheesh -- this is a ridiculously bad law and an unfortunate decision. PHOTOGRAPHY IS NOT A CRIME! Jeez!
Check these places out -- here and here and here -- I wish they weren't all America/Europe oriented. I wish that there was a Korean photojournalist/photographers' group that had the brass to stand up to this law -- 'cause I know that Korean photogs are probably as irritated as I am about it. Why ain't anybody fighting back?